COKER v. GEORGIA

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Argument of David E. Kendall

Chief Justice Warren E. Burger: We will hear arguments first this morning in 75-5444, Coker v. Georgia.

Mr. Kendall, you may proceed whenever you are ready.

Mr. Kendall: Mr. Chief Justice and May it please the court.

I am David Kendall and I represent petitioner Erlich Anthony Coker who has been condemned by the State of Georgia to be electrocuted for the crime of rape.

This case presents for review a question explicitly reserved in last term’s Gregg v. Georgia decision: whether the taking of a criminal’s life is a proportionate sanction where no victim has been deprived of life, for example, when capital punishment has been imposed for rape that does not result in the death of any human being.

Now, on September 2, 1974, petitioner Coker was incarcerated for murder, rape, kidnapping and aggravated assault at the Ware Correctional Institution in Southern Georgia.

During an Alcoholics Anonymous meeting he was attending that night, a group of prisoners seized two guards and in the ensuing disturbance, petitioner Coker escaped through the roof of the building the meeting was being held in.

At about 11 pm that evening, petitioner appeared at the home of Allen and Alita Carver in nearby Waycross, Georgia.

Brandishing a board, he had Allan Carver tied up in the bathroom and moved the Carvers’ three-weeks old sleeping baby in the bassinette into the bathroom with Carver.

He secured a kitchen knife with a four-inch blade and took $20.30 from Allan Carter’s billfold which was lying on a dresser.

He had Mrs. Carver change into her street clothes in order to show him how to start the family car.

After she had undressed, he raped her and then clothed himself in Allan Carver’s clothes.

During the rape, the knife lay on a nearby dresser, within petitioner’s reach.

He told Allan Carver that he was taking Mrs. Carver with him and that he would release her unharmed, but if stopped by the police, he would kill her.

After they left, Allan Carver was able to free himself and call the police.

Within the hour, the police arrested petitioner, who had parked with Mrs. Carver on a dirt road to evade a police road block.

Mrs. Carver was released, nervous, shaken but physically unharmed apart from the rape itself.

A counsel was appointed to represent petitioner and he was subsequently indicted for rape, armed robbery, kidnapping, motor vehicle theft and escape.

A special plea of insanity was filed which, under Georgia law, sets up present competence to be tried and on November 19th, 1974, the jury returned a verdict finding petitioner competent.

Now, the case was tried on all five counts of the indictment under the procedures that this Court has reviewed in Gregg v. Georgia.

At the conclusion of the first stage of the trial, the jury returned a verdict of guilty on all five counts.

At the second stage, a proceeding was then held to determine sentence on the two punitive capital counts of the indictment, the rape and the armed robbery.

Now, at this point the State introduced evidence of petitioner’s prior capital felony convictions.

This record consisted of three two-count indictments involving crimes against two victims.

With one Philip Ecoles, petitioner had been convicted in the Clayton County Superior Court for the December 5th, 1971 murder of one Sue Ann Wick, the rape and murder of Sue Ann Wick, and had received consecutive sentences of life imprisonment and twenty years imprisonment.

With one Glen Harlen Stacey, he had been convicted after trial in the Richmond County Superior Court for the July 29, 1972 rape and kidnapping of one Susan Laureen Jones and for these crimes he received consecutive sentences of life imprisonment and twenty years imprisonment.

Finally, petitioner had pleaded guilty in the Tolliver County Superior Court to another July 29, 1972 rape of Susan Laureen Jones for which he received a sentence of life imprisonment.

The State introduced the indictment and the sentences for these crimes and presented witnesses who identified petitioner as the person named in these indictments and sentences, but details of these prior convictions or the factual circumstances of the prior convictions were not adduced.

Petitioner presented no evidence.

The trial court instructed the jury that as to the rape conviction, it could find two aggravating circumstances, which under the Georgia statute, justify the imposition of the death penalty.

The court instructed that the jury could find that the rape was committed by a person with a prior capital felony conviction and it instructed that the jury could find the rape committed by a person during the commission of another capital felony, to wit, the armed robbery of $20.30 from Allan Carver.

Now, the trial court did not define particular mitigating circumstances because none are defined in the statute, but it did instruct that in litigation, the jury could recognize anything which in fairness or mercy could justify extenuation of the degree of punishment.

Chief Justice Warren E. Burger: Do you suggest there are some extenuating circumstances here on this record?

Mr. Kendall: Well, Mr. Chief Justice, we believe that the evidence of petitioner’s sanity, insanity, of his alcoholism do indeed constitute mitigating circumstances.

Those have been presented to the jury at the first stage of the trial, this was essentially a trifercated trial.

There was a trial on the issue of sanity which preceded the trial of guilt or innocence.

The jury found both aggravating circumstances to exist beyond the reasonable doubt and sentenced petitioner to be electrocuted for the rape.

It imposed a sentence of life imprisonment for the armed robbery conviction.

An appeal was subsequently taken to the Georgia Supreme Court and that court, with one justice dissenting, affirmed petitioner’s sentences and convictions.

A certiorari petition was subsequently filed in this Court and on October 4th of last year, the Court granted certiorari limited to the single question whether the death penalty may be constitutionally exacted for a rape where the life of a victim is not taken.

While the court’s decision is of literally vital significance to Erlich Coker, it will not have much of an impact on the criminal justice system, whichever way the Court decides this case because the death penalty for non-homicide crimes has been almost totally repudiated by this society, in fact.

Of the 345 people who are now on death row in this country, six are on death row for non-homicide crimes or crimes that do not involve the death of the victim.

Georgia is the only American state and virtually the only jurisdiction in the civilized world that now authorizes the death penalty for the rape of an adult woman.

Justice Potter Stewart: Georgia also authorizes the death penalty, you have already told us, for armed robbery, does it not?

Mr. Kendall: Yes, Mr. Justice Stewart.

Justice Potter Stewart: And for kidnapping, does it not?

Mr. Kendall: For kidnapping, when the victim is harmed or ransom secured, it authorizes the death penalty for six capital offenses after Gregg.

It also authorizes the death penalty for treason, for murder and for aircraft hijacking.

Justice Potter Stewart: So in non-homicide cases, the death penalty can be imposed for five different offenses under Georgia law?

Mr. Kendall: Four, because the Georgia Supreme Court in the Gregg case held that the death penalty could not be constitutionally imposed for armed robbery.

Justice Potter Stewart: Despite the statute?

Mr. Kendall: Despite the statute, it was a statutory holding, it was not a constitutional holding.

Indeed, after Furman v. Georgia, the states enacted 16 non-homicide death penalties.

Georgia enacted five of those.

Justice William H. Rehnquist: You said the Georgia Supreme Court’s ruling that death could not be imposed for armed robbery was a statutory ruling?

Mr. Kendall: Yes, Mr. Justice Rehnquist.

There is a cruel and unusual punishments clause in the Georgia Constitution, but that clause was not relied on in the Gregg case.

There is a provision for review of a sentence that is disproportionate or excessive and the Georgia Supreme Court held that a death penalty for armed robbery was such an illegal sentence.

Justice William H. Rehnquist: Was it the holding that would apply to all future convictions for armed robbery?

Mr. Kendall: Yes, yes it was.

The Court has vacated since that time two other death sentences for armed robbery.

In each case an armed robbery death sentence has been imposed, it has been imposed with a murder death sentence, so just one death sentence was vacated of each defendant.

Even in Georgia, only a small arbitrarily selected fraction of eligible defendants are condemned for rape.

Finally, the death penalty for rape comes to this Court with a notorious and unsavory reputation for racial discrimination.

Now, petitioner Coker is white and the Court did not grant an equal protection claim in this case, but part of our Eighth Amendment submission on behalf of petitioner Coker is that the origin of the death penalty for rape and such continuing acceptance as it demonstrates is really founded in invidious racial discrimination.

Ninety percent of the people executed for this crime, the 455 people executed for this crime since 1930, have been black.

In Georgia itself in this period, 58 blacks have been executed and three whites have been executed.

Now, our submission on behalf of petitioner Coker is essentially two-fold.

First, that the death penalty for rape constitutes an excessive and disproportionate punishment for a crime where the life of the victim has not been taken when judged by relevant contemporary standards and second, quite apart from this first claim, that the present pattern of imposition of the death penalty for rape in Georgia shows the same arbitrariness, infrequency and capriciousness of application that this Court held violated the Eighth Amendment in Furman v. Georgia.

Now, that punishment should somehow be proportioned to the offense was first recognized by this Court in Weems v. United States.

It was again recognized in last July’s capital punishment decisions.

In those cases, the Court held that the death penalty for homicides intentionally committed by a defendant did not violate the Eighth Amendment, was not a disproportionate sanction, but the Court reserved the constitutionality of a death penalty where the life of the victim was not taken.

Now, certainly rape is a serious offense like aggravated assault, maim, child torture, aggravated sodomy or attempted murder.

The question here, however, is whether rape will be punished by the ultimate penalty that the criminal justice system can dispense.

In Woodson, the plurality recognized that the death penalty is different in kind from a sentence of imprisonment, however long.

It said that death is qualitatively different from imprisonment.

Last Tuesday, the plurality in Gardner v. Florida stated that the death penalty is different from imprisonment in both severity and finality, that it differs dramatically from any other legitimate state action and the question posed here is not whether rape will be stringently punished.

Indeed, Georgia authorizes a sentence of life imprisonment for rape.

The question is really whether it could be punished by the unique and irreversible punishment of death.

Now in the Gregg plurality opinion, the Court stated that in applying the proportionality test, the Court would not look to subjective standards, but would instead look to what it called objective indicia of contemporary attitudes towards a given sanction.

It recognized three of these objective indicia: legislative enactments, jury verdicts and what the Court called history and traditional usage.

We submit by the unanimous concurrence of these indicators, the death penalty is cruel and unusual punishment today.

Now, as far as legislative enactments go, as I have mentioned, Georgia Code annotated 26-2001 is literally unique in the United States.

No other American jurisdiction now authorizes the death penalty for the rape of an adult woman.

In 1926, there were 20 United States jurisdictions that authorized a discretionary death penalty for the rape of an adult woman.

Even before this court’s decision in Furman v. Georgia, there was a trend toward abolition.

Delaware abolished the penalty in 1958.

West Virginia abolished it in 1965.

The District of Columbia abolished it in 1970.

On the eve of Furman, therefore, 17 states had a discretionary death penalty for the rape of an adult woman.

The 11 states of the Confederacy, four border states; Kentucky, Maryland, Missouri, Oklahoma, plus Nevada where there was severe bodily injury and the United States.

Now, Furman wiped these statutes off the books because all were discretionary.

Justice Potter Stewart: But surely you do not suggest that this court’s Furman decision represents a community consensus that would be the same as if those 17 states had themselves repealed the statute, so you?

Mr. Kendall: Well, I submit that the court’s Furman decision does reflect the desuetude into which the death penalty had fallen in many cases, both murder and rape.

We really, as an indicator of contemporary standards, rely on the legislative reaction to Furman, and to Gregg for that matter because when the legislatures had to take another look at the crime of rape, only six states enacted any kind of death penalty for a rape offense after Furman.

Now, three of these states; Tennessee, Florida and Mississippi enacted a death penalty for the rape of a child under 12 or in the case of Florida, under 11.

North Carolina and Louisiana enacted a very narrow death penalty, mandatory death penalty for the rape of an adult woman where there was serious bodily injury or where a weapon was used.

Only Georgia enacted a death penalty that would punish any rape of an adult woman with death.

So we think that the reaction to Furman does manifest that legislative repudiation and indeed, there is a further reaction because, since Gregg, this court’s decisions in Roberts and Woodson had the effect of invalidating mandatory death penalty statutes.

So that invalidated Tennessee’s death penalty statute, Louisiana’s, North Carolina’s and Mississippi’s.

Now, if you look at --

Justice Potter Stewart: How long in time do you give them to react under your standard of --

Mr. Kendall: Well, I think probably with those states, it is too short to be sure, but we do know that for example, Louisiana has enacted within a month of this court’s Roberts decision, enacted a death penalty for homicide, for certain kinds of homicide.

It defeated a death penalty for aggravated rape.

So I think that Louisiana, we can check off.

Tennessee, the only other legislative activity that I am aware of is in the state of Tennessee where a death penalty for homicide has cleared the judiciary committees of both houses and the death penalty for rape bills have been defeated within those committees.

So I am not suggesting that there is enough time since Gregg to fully assess it, but we do know that there have been four death penalties for homicide statutes passed since Gregg.

None of those states have enacted a death penalty for rape and there are three other states which we note in our reply brief where both houses of the legislature have enacted a death penalty bill for homicide and those are awaiting the governor’s signature in Maryland, New Jersey and Virginia and the houses of legislature have not enacted a death penalty for rape.

Chief Justice Warren E. Burger: You have mentioned the irreversibility of the death penalty as one of the bases for its infirmity, constitutionally.

I wonder if you would expand a little on that.

How does that enter in this case in any different way from in any other capital case?

Mr. Kendall: Mr. Chief Justice, I did not mean to suggest that that was the only reason for its unconstitutionality in this case.

What I did mean to suggest was that it was a reason for applying an exceptionally high standard of review and justification and I think the death penalty is different in one respect because it is irreversible.

I think that means that this higher standard of review has to be applied to the justifications advanced by the state and also to the consideration whether a particular death penalty for a non-homicide offense is consonant with contemporary values.

Chief Justice Warren E. Burger: You have two concepts there really, have you not, the generality applying to the penalty in all cases and its application to the particular case?

Now, irreversibility is usually advanced to us as an argument because of the possibility of error in the judgment and do you argue that in this particular case?

Mr. Kendall: Yes, we do.

We think that in one sense, the execution of petitioner Coker or Ebrahart or Hooks or anybody else on death row for rape, would be error not in the sense I think error is usually meant, but in the sense that it is an erroneous execution because society has broadly repudiated it.

Chief Justice Warren E. Burger: I did not mean error in that sense.

I meant I was directing my observation about error to the argument usually advanced here that the death penalty is obviously irreversible and you might execute the wrong person that is a person is not guilty.

Mr. Kendall: Well, there are certainly other collateral claims presented in this case, which the Court did not grant certiorari on the basis of that would be pursued in collateral proceedings which might demonstrate that because of insanity or some other reason, this death penalty was erroneous.

So in that sense, we do have that claim of factual error in this case.

Justice Lewis F. Powell: Mr. Kendall, before you proceed, if we have a prison inmate who has been convicted of aggravated rape and sentenced to life, a mandatory life sentence under the statute that forbids parole and the inmate escapes and commits another aggravated rape, what punishment do you think would be appropriate?

Mr. Kendall: That, of course, is not the case presented here.

Justice Lewis F. Powell: I understand that.

Mr. Kendall: But it seems to me that in the circumstances of that case, imprisonment would be an appropriate punishment when judged by what society does to essentially all other people who are convicted of that crime.

Justice Lewis F. Powell: Would that be any punishment for that individual?

Mr. Kendall: Certainly, he would have the stigma of another rape conviction.

Society would be protected since it would have kept him incarcerated.

Justice Lewis F. Powell: The same way it was protected on the first go-around.

I say it would be protected to the same extent that it had been protected after his first conviction for rape.

Mr. Kendall: Yes, Mr. Justice Powell, that is --

Justice Lewis F. Powell: Yet he escaped.

Mr. Kendall: That is correct.

Of course, petitioner Coker was incarcerated --

Justice Lewis F. Powell: I am not talking about Coker, I was asking your view as to whether or not there could ever be a situation where absent any other punishment, capital punishment would be appropriate for repetitive crimes of rape.

Mr. Kendall: Well, we think that the objective indicators that the Court pointed to in Gregg would indicate that society, where a life has not been taken, the death penalty is inappropriate to protect a value other than life.

Justice Lewis F. Powell: What deterrents would exist in the circumstances I described?

Mr. Kendall: I think that the deterrence connotes protection from society it seems to me in that case.

I think that certainly if there is a life without parole statute, adding a sentence would not in and of itself impose more punishment.

But insofar as deterrence is a question that relates to the general public, I think the usual safeguards that can be applied to prevent escapes would adequately protect the public, because it is interesting that in both the Coker and the Coley case, which are two, the Coley case is very similar to this case in many ways.

These were prisoners who escaped from a correctional facility and committed rape.

Neither of those prisoners was incarcerated in a maximum security facility.

The state of Georgia can take more steps than it has taken in these cases to protect society.

Also, the state of Georgia can enact, as it has not yet enacted, some longer term of mandatory imprisonment for repeated crimes, whatever those crimes are.

In Georgia, under Georgia Code annotated 77-525, a prisoner comes up for parole in seven years, regardless of what his sentence is.

Now, Georgia could extend that time, if it wished to do so.

Justice Potter Stewart: Of course, anybody who is serving a life sentence without a hope of pardon or parole who escapes can with practical impunity commit any offense, including whether it would be petty larceny or jaywalking or shoplifting, unless you decide that the only way to give him additional punishment is to put him to death for jaywalking or shoplifting or petty larceny.

Mr. Kendall: Well, this case was really not tried on a recidivism theory.

The jury was not instructed that Coker’s repeated crimes could justify imposition of the death penalty.

He had capital felonies other than rape.

The Georgia Supreme Court did not review it on a recidivist theory.

In fact, its proportionality review consisted entirely in the statement that the death penalty here is not excessive or disproportionate.

As we point out, in comparison to the Coley case, although Coley was an armed robbery recidivist, the two factual circumstances are almost identical.

In fact if anything, the Coley case is a little more aggravated on the facts.

But many states have opposed or many groups have opposed life without parole statutes because it deprives the corrections authority of all control over inmates who hope at some point to be paroled.

Unknown Speaker: Have any study been made of what happens in the states that long since abolished capital punishment?

Like Maine, for example, what did they do?

Mr. Kendall: Well, the only study I know of is a study by Professor Bailey that appears in the 1976 book, Capital Punishment in the United States, he did a regression analysis which indicated that (a) rape rates in abolition states were lower than in retentionist states and also that the death penalty, its execution in retentionist states bore no inverse relation to the rape rates.

That would suggest that there is no deterrent effect of the death penalty, but Bailey also I think in fairness, observed that the death penalty was simply too sporadically imposed to really run a good regression analysis.

It is very seldom imposed.

It also constituted no threat, he said, to the white rapist.

So, he did no really say that his study was at all conclusive, but the data is so bad that it is difficult to get a conclusory study.

So I mentioned that petitioner with Messrs, Hooks, Ebrahart, Shue, Hughs and Boyer are the members of an exclusive, but hapless fraternity.

They are the only people now on death row.

There are a couple of ways to measure their uniqueness.

First of all, the uniform crime reports indicate that about 1200 forcible rapes occur every year in Georgia.

That would be about 4800 rape offenses committed under the new statute.

The other thing, as we point in our brief and reply brief, is that the Georgia Supreme Court has reviewed 59 cases in which life or less has been imposed as a punishment for a crime.

Not all rape convictions certainly were appealed to the Georgia Supreme Court, but we do know that at least 59 non-capital rapes have been reviewed.

I think I have said enough to indicate what our Furman submission is.

It is simply that without reaching the question whether the death penalty is disproportionate for the crime of rape, the pattern of imposition here is precisely that observed in Furman.

The death penalty is an extraordinarily rare punishment for the crime of rape.

I would like, if I may, to reserve the remainder of my time for rebuttal.

Chief Justice Warren E. Burger: Very well, Mr. Kendall.

Mr. Grindle?

Argument of B. Dean Grindle

Mr. Grindle: Mr. Chief Justice and May it please the court.

We have essentially three points that we wish to make this morning.

First is that the Constitution does not define what is and what is not a capital crime.

Secondly, we submit that condemning death for rape under any and all circumstances would have far-reaching consequences over and beyond this particular case, and over and beyond the question vis-à-vis rape, that is, capital punishment vis-à-vis rape.

Our third point that we would wish to stress is recidivism and violent crime.

The Court has noted that the wisdom of capital punishment is generally a matter for the legislative forum.

We submit that this reflects the wisdom of the framers of the Constitution and that the legislative judgment is bound primarily in this area by the Eighth Amendment.

Now, the Court in the Gregg series of opinions has held that death for murder is not unconstitutional regardless of the offense, regardless of the offender and regardless of the procedure involved.

It is difficult for us to fathom how a constitutional distinction can be drawn between rape and murder.

Unknown Speaker: You do concede, I suppose, General Grindle, do you not, that dsproportionality is one of the criteria, one of the ingredients in a constitutional determination of whether a punishment is cruel or unusual.

In other words, you would concede, I suppose, that the imposition of the penalty of death for running though a red light would be a cruel and unusual punishment, would you not?

Mr. Grindle: I would concede that.

I would submit --

Unknown Speaker: So that is conceding that disproportionality can be a dispositive ingredient in the determination of what is cruel and unusual punishment, is it not?

Mr. Grindle: On the basis of the plurality in Gregg and the concurrences, I think I would be forced to concede.

Unknown Speaker: Well, you would, would you not?

You would concede, would you not that the death penalty for stealing ten cents is cruel and unusual punishment?

Mr. Grindle: Yes I would, and for purposes of this case.

Unknown Speaker: Regardless of anything this Court has held, would you not as a constitutional lawyer concede that?

Mr. Grindle: Yes and for purposes of this case, we have in effect conceded that disproportionality is a measure of constitutional review in this type of case.

The point that I wish to draw in terms of murder and rape is that the statutes are not designed to execute all murderers.

For the same reason, the statute is certainly not designed to execute all rapists.

The point is that some rapes can be viewed, not only can be but are viewed, by society just as serious and calling for severe sanctions, just as many murders are.

In fact some rapes, depending on the circumstances of the offense, the character of the offender, would call for more public condonation than many murders, based on the fact that many, many murders occur among friends, amongst family members and rape of course seldom involves that situation, not to say that it does not occur, but it is generally a situation where the victim is a stranger to the offender.

Unknown Speaker: Mr. Attorney General, does Georgia a distinction in its law between rape and aggravated rape?

Do you have two separate statutes?

Mr. Grindle: The crime of rape is not defined in terms of rape and aggravated rape.

We simply have one definition.

Unknown Speaker: The statute that is in the brief, is this the only rape statute in Georgia?

Mr. Grindle: Yes, defined as --

Unknown Speaker: But no statutory definition of aggravated rape?

Mr. Grindle: There is not.

We have just simple rape and statutory rape.

However, by virtue of the fact that the General Assembly authorizes death as a permissible penalty for rape written into the capital punishment statute, is in effect an aggravating element and that we have to read both together and to that extent, although we do not have degrees of rape, just in terms of defining the crime as a matter of practice before a death penalty would be authorized in any particular rape case.

It would be in the nature of some type of aggravated crime.

Justice Potter Stewart: Does this not leave the jury at large to impose the death penalty in any rape, depending upon their own reaction to the evidence, unguided by any instructions on standards of the kind of justice that probably was probing at?

Mr. Grindle: To the extent that the jury could always refuse to return a death verdict, that may well be true, but it would also be true in a murder case.

The jury is always free to ignore the instructions.

In the general case, the aggravating circumstances would be charged to the jury and they would pass on those.

Justice Potter Stewart: The jury has to find at least one or more statutory aggravating circumstances in order to impose the death penalty in Georgia, is it not?

Mr. Grindle: That is correct.

Justice Potter Stewart: For a rape case or murder case or any other --

Mr. Grindle: Any capital --

Justice Potter Stewart: Well, in this case, for example, an aggravating circumstance would be a previous conviction for a punitive capital felony.

So that would be an aggravating circumstance even if the rape found were that of a jilted boyfriend and a former girlfriend, people who were not strangers but who knew each other.

Mr. Grindle: That is correct, Mr. Justice Stewart.

However, I should point out and it is important that this point be noted and that is the mere fact that a particular aggravating circumstance is present does not mean that that death sentence will be affirmed.

In other words, the presence of the aggravating circumstance is a mere pre-requisite to even considering the imposition of the supreme penalty, and not --

Justice Thurgood Marshall: General Grindle, is there any statute or anything else that says what standard shall be used to decide whether it is aggravated or not?

Mr. Grindle: The circumstances, the aggravating circumstances themselves, we submit, provide the standards.

Now, one or more –

Justice Thurgood Marshall: You say defy the statutes?

Mr. Grindle: The aggravating circumstances in effect define the standards.

They are the standards, in other words.

Justice Thurgood Marshall: What are they in Georgia?

Where can you point me to them where I can read them?

Mr. Grindle: The aggravating circumstances, Mr. Justice Marshall, appear in our code at Section 27-2534.1.

Justice Thurgood Marshall: Where is that?

Chief Justice Warren E. Burger: What are you reading from?

Mr. Grindle: I am reading from our code annotated.

Chief Justice Warren E. Burger: Well, can you give us a page in your brief?

Justice Potter Stewart: Page 8 of the petitioner’s brief.

Mr. Grindle: Yes, that is at page 8 of the petitioner’s brief and particularly it is on page 9.

The 10 aggravating circumstances are listed.

Justice Thurgood Marshall: Those are for murder.

Unknown Speaker: No, they are for any offense.

Justice Thurgood Marshall: Where is that, we have been -- where is it, 27-2537?

Unknown Speaker: Numbers 1, 2 and 7 apply to rape.

Mr. Grindle: In this particular case, the aggravating circumstances were, number one: the prior record of convictions for a capital felony and number two, the petitioner was also engaged --

Justice Thurgood Marshall: Number seven is more specific.

Mr. Grindle: Pardon?

Justice Thurgood Marshall: Seven is more specific for you, is it not?

Mr. Grindle: That one perhaps has been the occasion for more litigation and argument than the others.

That is not present in this case.

That circumstance was not charged and of course it was not found.

Numbers one and two were charged and were found.

Justice Thurgood Marshall: And the others were not even charged, if you remembered?

Mr. Grindle: I believe there was a charge on armed robbery, but the jury did not find that.

The petitioner has submitted that this case would not have or that is a decision in his favor would not have much impact beyond his case, we disagree.

We disagree for this reason.

The recourse available to society, if society determines that certain non-homicidal crimes must be punished and deterred and that terms of imprisonment are not sufficient, the alternative is to amend the Constitution, assuming that the Court has ruled in the petitioner’s favor.

And that would be because we submit the case would be construed as having consequences beyond just a crime of rape, specifically the exception noted in the Gregg opinion were crimes where the offender has not taken the life of the victim.

Although the opinion here would obviously be concerned with rape, it would be construed, we submit much more broadly and that constitutional amendment would be the only conceivable recourse.

And that as a practical matter would be very difficult and revision in light of future experience would be very difficult.

Now, we do not know --

Justice Potter Stewart: Your argument is that a decision in favor of the petitioner in this case, holding that it is constitutionally impermissible to sentence somebody to death for the commission of the offense of rape not involving a homicide would have broad implications because it would be understood as holding that the imposition of the death penalty for any non-homicidal offense would be constitutionally impermissible, is that your argument?

Mr. Grindle: That is my argument Mr. Justice Stewart.

Justice Potter Stewart: What other non-homicidal offenses do you suggest would be or should be held to be constitutionally permissible so far as the infliction of the death penalty is concerned?

Mr. Grindle: I have two categories in mind and that is in effect concerning yourself, that is society concerning itself with the violent recidivist, regardless of the nature of his crime.

Justice Potter Stewart: Even though it is just repeated cases of assault and battery, for example?

Mr. Grindle: Not necessarily.

Justice Potter Stewart: That has violence.

Mr. Grindle: Well, it is hard to be drawing a line as to say where or who would draw the line.

I think that would be a legislative judgment, but I would look for the recidivist who has committed prior capital crimes such as we have in our statute.

If he has killed, if he has maimed and continues to do so, then society needs to protect itself from that individual.

Justice Potter Stewart: Well, if he has committed murder and this court has in the Gregg case has given you the answer on that.

Mr. Grindle: I am not responding really to the particular crime where he does kill the victim.

Certainly, if he has killed before and he attempts to kill again, if he commits another armed robbery or has killed or has seriously maimed the victim, if he has this type of record and he commits another armed robbery, it should be permissible to deter that specific individual from further such acts.

Now, in terms of general crimes --

Justice Potter Stewart: Well, it would certainly deter him.

Generally, deterrence is considered with a somewhat different meaning that is to deter others because of the example you make of him.

Mr. Grindle: I want to move to what I call specific deterrence as opposed to general deterrence or incapacitation, I was referring to incapacitation in terms of that individual.

Also before I move on to that point, other crimes that may come to the forefront in the years to come or perhaps in this day in time are just in the formative stages and the past 10 years we have seen aircraft hijacking become somewhat of an everyday occurrence in the newspapers.

Fortunately, it has been curbed in recent years and also in a similar vein, hostage taking has become very popular.

In future years, terrorism of that sort may continue to increase and when we have hostages taken, if we have injuries to those hostages, the disruption of the governmental process that is the type of thing that we cannot be sure of.

And of course, if those hostages or the acts engaged in result in death, that would be permissible to execute them there if they are prosecuted for murder.

Justice Harry A. Blackmun: Mr. Grindle, what is your attitude about espionage and treason?

These are older ones, and --

Mr. Grindle: Yes, that, Mr. Justice Blackmun, goes to the integrity of your democracy.

I think that is a justification, perhaps.

We put our freedom and our form of government on a pedestal and although that is historically been a capital crime, I have not given much thought to the point because of its fortunate rarity.

Justice Potter Stewart: Has anybody ever been sentenced to death in Georgia for espionage or treason?

Mr. Grindle: Not to my knowledge.

Chief Justice Warren E. Burger: Is espionage a crime in Georgia?

Mr. Grindle: Mr. Chief Justice, to my knowledge, treason is a crime.

I am not sure if we have a separate crime of espionage and in my lifetime I cannot recall anyone being tried for treason.

Justice William H. Rehnquist: Mr. Grindle, how do you read the plurality opinion in Gregg as applying to the Rosenberg case assuming that the facts were all properly found in that case and if they were guilty, what they were charged with?

Unknown Speaker: In that connection, I asked the other question not because Georgia might or might not have the statute relating to espionage or treason, but because the decision in this case would certainly bear upon federal crimes or federal treatment of those crimes and Justice Rehnquist’s question is similarly directed.

Mr. Grindle: In response to that Your Honors, as I understand the question, what impact the plurality in Gregg would have on the case such as the Rosenberg Spy trial?

Did I understand it correctly, Your Honor?

As I have read the plurality in Gregg, there must be a two-step process.

First is the crime served or does the punishment serve any legitimate government interest, not necessarily that this would be the best punishment and number two, is it disproportionate and if the impact is to say that capital punishment is unconstitutional if a life is not taken, it reverts us to a contemporary form of the eye-for-an-eye, for instance.

We submit that society should not be relegated to such a simplistic formula that in many instances, the need to deter such crimes that would go to the very foundation of your government would be the sufficient justification to promote the taking of a life when none has in fact been taken, that is none have been taken directly.

Justice Potter Stewart: Was that legislative policy, the legislative policy reflected in this Georgia statute?

It means that a person can commit murder with impunity if one wants to put it that way, after committing a rape, an assailant could think, well I might as well kill the victim because the punishment would be no greater, am I correct?

Mr. Grindle: I would disagree with that, Your Honor.

I think the logic behind that question would perhaps be sound if we had a mandatory system where the offender would be executed just for committing the rape, would absolutely be executed.

Justice Potter Stewart: Well, it is not mandatory for either, is it?

Mr. Grindle: Well, in the mandatory systems that Woodson in effect, threw out, that point would have more validity.

In the discretionary system, I do not feel that it has much validity.

Number one, our statute gives the rapist the incentive not to harm.

If he does murder, the likelihood of the chances that he will receive a death verdict are increased tremendously and if the fear of capital punishment deters in the sense of saving victims’ lives, we submit that it would also have a fall-down effect.

In other words, that if life taking is deterred that the tendency to harm the victim would also be deterred somewhat, such as the armed robber who goes into the convenience store for the stick-up, he would be deterred from taking a gun perhaps into the store, fearing that he would commit murder in the course of the armed robbery.

If he chooses not to take his gun into the store, perhaps he will not even commit the armed robbery at all.

Therefore, in our system, the incentive is not to harm your rape victim.

If you do, that still does not mean that you will be executed.

Our third point is recidivism and violent crime and I have touched on that briefly before and the question is simply what is society to do with the incorrigible recidivist who has not only demonstrated that he will rape again, but also demonstrated that he will likely kill or seriously injure those whom he rapes.

Now, the petitioner has stated that he was not tried under a recidivist theory.

Well, we disagree with that completely.

First, the aggravating circumstance under which he was found guilty that we noted before is the prior conviction of a capital felony and we submit that that is the basis for such an aggravating circumstance or that the theory underlying that specific aggravating circumstance is specific deterrence that is to deter, to preclude that particular individual from committing further violent crimes to incapacitate that particular criminal and that has been recognized in many of the so-called mandatory statutes.

In fact in Texas, it is required that it be determined that the offender will likely engage in further serious violent crime.

That was the basis of this aggravating circumstance.

It was relied on heavily by the state and we submit that was the primary basis upon which he was tried as a recidivist.

When we look at the specific crimes involved here, we see three prior rapes, two pertaining to the same victim.

One victim was severely injured.

The other victim was killed.

Now, the particular victim in this case was not harmed over and beyond the rape itself, but we submit that, to deter those who demonstrate their recidivism such as this petitioner, the question of the constitutionality of punishing death for rape should not hinge on the fact that he did not harm his most recent victim.

In fact, the quickness with which he was apprehended perhaps saved this victim from a fate similar to her predecessors.

Unknown Speaker: If the death penalty is not imposed on this man, did I understand you to say he will be eligible for a statutory release arbitrarily at some point?

Mr. Grindle: Our parole board will review a life sentence or we will review one serving a life sentence after seven years and Mr. Coker would be sentenced to life, if his death sentence is vacated.

I would like to conclude with the observation that Mr. Justice White made in Roberts and that is that death finally forecloses the possibility that a prisoner will commit further crimes, whereas life imprisonment does not.

Thank you.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Kendall?

Rebuttal of David E. Kendall

Mr. Kendall: Yes, Mr. Chief Justice, just a few points.

The need to protect society really has more than one facet and I commend to the court’s attention the Amicus Curiae brief filed by a number of women’s rights organizations.

They make the point that, for their constituents, the death penalty for rape is counter-productive.

It discourages prosecutions, may lead to jury nullification and gives the criminal in a state where homicide is punishable by death an incentive to kill the victim.

So as far as they are concerned, I do not think anybody can tax them with insensitivity to rape victims, the death penalty for rape is counter-productive.

Now, the second thing that I would like to say is about the use of the death penalty for other crimes.

As I pointed out earlier, in the four years since Furman, nobody has been condemned to die for some non-homicide and only six people have been condemned to die for rape.

I think this underlines the wisdom of the Court’s traditional (Inaudible) the principles in not confronting this case until it has to.

A decision in the rape case will not necessarily decide those cases and those cases may simply be moot because the death sentences under these other crimes may never come to the court.

As far as the racial history of the death penalty in Georgia goes, I think it is interesting that in the respondent’s brief, there is not one syllable of exculpation of the history of the death penalty for rape in Georgia.

We have set forth the legislative history.

It appears to be designed after the Civil War to punish black defendants who commit the crime of rape against white victims.

That is what observers have concluded and that is what statistics seem to show.

So this penalty does not come to this Court with a even-handed history of application.

I have mentioned that the case was not tried on a recidivist theory.

What I meant by that was that the jury was not instructed in any way as to Coker’s future dangerousness.

Now, we have attacked this statute on its face, but we also feel that even if there are some rapes which may be capitally punished, this statute does not draw a defensible line.

It may be that there is some kind of dangerousness test or harm to the victim test.

This case was not tried on that.

It also was not tried on a theory of what a petitioner was likely to do in the future.

Justice Thurgood Marshall: Was not the jury charged on Sections 1 and 2 of that statute?

Mr. Kendall: Yes, Mr. Justice Marshall they were, but they were charged on the capital felonies of armed robbery, murder and rape.

They were charged on the petitioner’s past record, but insofar as he constituted a threat in the future, there was nothing like the Texas capital punishment statute’s instruction to the jury to consider future harm.

Finally, the point about the Lex Stallones; this has always been a principle, a harsh retributive principle, but historically it has been used to limit the punishment and we submit that part of the reason for the repudiation of the death penalty may be simply a popular perception that, where life is not taken, life should not be forfeited.

Thank you very much.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.